HERBACH v. HERBACH

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Petitioner appeals as of right from a probate court judgment
denying her claim to take as a pretermitted spouse, ruling that
she was not entitled to take any amount of the estate pursuant to
an elective share, ordering her to reimburse respondent for
certain family allowance payments made to her by the estate, and
ordering her pay $700 in costs and attorney fees. We affirm in
part, reverse in part, and remand.

The testator, Walter Herbach, executed his last will and
testament on March 13, 1982. In his will he devised $50,000 to
petitioner, as a "friend." Petitioner and the testator
were married in April 1983 and remained married until the
testator’s death on January 25, 1995. The testator’s son,
respondent Barry Herbach, was named as the personal
representative of the testator’s estate and probate proceedings
were commenced in February 1995.

On June 15, 1995, petitioner filed a petition with the probate
court seeking a family allowance. See MCL 700.287; MSA 27.5287.[1]Five days later, respondent
notified petitioner of her right to request a family allowance
and of her rights to make an election under MCL 700.282; MSA
27.5282.[2]Petitioner sought a
non-chargeable family allowance for a period of one year. On July
5, 1995, petitioner was awarded a prospective family allowance in
the amount of $6,500 per month for an uncertain duration. In
November 1995, the probate court reduced the monthly rate to
$5,500. Then, on February 22, 1996, the probate court issued an
order providing that any family allowance payments made to
petitioner after January 25, 1996 (the one-year anniversary of
the testator’s death) would be charged as advancements against
petitioner’s interest in the estate. On March 7, 1996, petitioner
filed a petition for family allowance payments retroactive to the
date of the testator’s death in which she asserted that she would
have requested family allowance payments sooner if respondent had
not delayed in notifying her of the commencement of the
proceedings and of her right to receive a family allowance. The
probate court denied petitioner’s request for retroactive
payments without explanation.

Within the statutory time period for making her election as a
surviving spouse pursuant to MCL 700.282; MSA 27.5282, petitioner
notified the probate court that she intended to take her elective
share of the estate rather than abide by the terms of the will.
Petitioner also filed a petition with probate court to take a
share of the estate as a pretermitted spouse under MCL 700.126;
MSA 27.5126.[3]Respondent argued that
petitioner was not entitled to take as a pretermitted spouse
because she had not been omitted from the will. In an opinion and
order, the probate court ruled that petitioner could take as a
pretermitted spouse if she was named in the will, as long as she
was not named in the will in contemplation of marriage. Because
the testator’s intent in naming petitioner in his will was a
question of fact, the issue was set for trial. The other question
of fact to be resolved at trial was whether the testator
transferred assets to petitioner outside of the will in lieu of a
testamentary disposition. After a six-day trial, a jury
determined in a special verdict (1) that the testator did not
contemplate marriage to petitioner when he executed his will, (2)
that the testator provided for petitioner by transfers outside of
the will, and (3) that these transfers were made in lieu of a
testamentary disposition. Accordingly, because of the second and
third findings of the jury, the probate court ruled that
petitioner was not entitled to take as a pretermitted spouse.

Shortly after the trial, respondent moved for reimbursement of
the family allowance payments chargeable as advancements against
petitioner’s interest in the estate. Respondent asserted in his
motion that, in addition to foreclosing petitioner’s claim as a
pretermitted spouse, the testator’s non-testamentary transfers to
petitioner also reduced the value of her elective share to zero.
The probate court granted respondent’s motion and ordered
petitioner to reimburse the estate $44,000 for family allowance
payments paid after January 25, 1996. The probate court also
denied petitioner’s request to withdraw her election of the
statutory spouse’s share and to take under the will instead.
Finally, the probate court ruled that petitioner was not entitled
to any amount of the estate pursuant to her election.

On appeal, petitioner first argues that the probate court
erred in instructing the jury that petitioner bore the burden of
proof on the issues whether the testator provided for petitioner
outside the will and whether the testator intended those
transfers to be in lieu of a testamentary provision. Because we
are persuaded that petitioner was not entitled to a trial on the
issue of her right to take as a pretermitted spouse, we will not
address petitioner’s argument regarding the proper allocation of
the burden of proof.

Instead, we agree with respondent’s contention that because
petitioner was named in the will, she is precluded as a matter of
law from taking as a pretermitted spouse. This argument was
rejected by the trial court and is not now raised in the context
of a cross appeal. Nevertheless, we may address the argument
because respondent is merely urging an alternative ground for
affirming the result reached by the probate court. Although a
party that has not sought to cross appeal cannot obtain a
decision more favorable than that rendered by the lower tribunal,
cross appeal is not necessary to urge an alternative ground for
affirmance, even if the alternative ground was considered and
rejected by the lower court. Middlebrooks v Wayne Co, 446
Mich 151, 166 n 41; 521 NW2d 774 (1994); ABATE v Public
Service Comm, 192 Mich App 19, 24; 480 NW2d 585 (1991). But
see Barnell v Taubman Co, 203 Mich App 110, 123; 512 NW2d
13 (1993).

The application of Michigan’s pretermitted spouse statute to a
surviving spouse named in the will, but not named in
contemplation of marriage, is an issue of first impression in
Michigan. The statute provides in pertinent part:

If a testator fails to provide by will for his surviving
spouse who married the testator after the execution of the will,
the omitted spouse shall receive the same share of the estate the
omitted spouse would have received if the decedent did not leave
a will, unless it appears from the will that the omission was
intentional, or unless the testator provided for the spouse by
transfers outside the will and the intent that the transfers were
in lieu of a testamentary provision is shown by declarations of
the testator, by the amount of the transfers, or by other
evidence. [MCL 700.126(1); MSA 27.5126(1).]

The primary goal of judicial interpretation of statutes is to
ascertain the intent of the Legislature. Farrington v Total
Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993). The
first criterion in determining intent is the specific language of
the statute. House Speaker v State Administrative Board,
441 Mich 547, 567; 495 NW2d 539 (1993). The Legislature is
presumed to have intended the meaning it plainly expressed. McFarlane
v McFarlane, 223 Mich App 119, 123; 566 NW2d 297 (1997). If
the language used by the Legislature is clear and unambiguous, no
further judicial interpretation of the statute is permitted. Id.

Unless defined in the statute, every word or phrase of a
statute should be understood according to the common and approved
usage of the language, taking into account the context in which
the words are used. MCL 8.3a; MSA 2.212(1); Yaldo v North
Pointe Ins Co, 217 Mich App 617, 621; 552 NW2d 657 (1996).
When the words are not defined in the statute, a court may
consult dictionary definitions. Id.Webster’s New
Collegiate Dictionary (1977) defines "omit," in
part, as "to leave out or leave unmentioned." In this
case, it is undisputed that petitioner, who claims to be an
"omitted spouse," was not left out of the will or left
unmentioned in the will. Accordingly, under the plain language of
the pretermitted spouse statute, petitioner is not eligible to
take a share because she was not "omitted" from the
testator’s will.

Some appellate courts addressing similar provisions in other
jurisdictions have allowed surviving spouses to recover against
antenuptial wills in cases where they were named in the will in
some capacity other than as a spouse. See Estate of Gainer,
418 So 2d 256 (Fla 1982); Estate of Groeper, 665 SW2d 367
(Mo Ct App, 1984); see also Miles v Miles, 440 SE2d 882
(SC, 1994). These courts have reasoned that such constructions
are necessary to protect the surviving spouse from inadvertent
disinheritance. Gainer, supra at 258; Groeper,supra at 369. To reach this result, however, these courts
have been forced to read a "contemplation of marriage"
requirement into their respective pretermitted spouse statutes,
allowing surviving spouses named in the will (but not named in
contemplation of marriage) to take against the will as
"omitted" spouses, or spouses not "provided
for" in the will. See Gainer, supra at 260; Groeper,supra at 369; Miles, supra at 883. Other
foreign courts have interpreted similar pretermitted spouse
statutes more narrowly. See In re Keeven, 716 P2d 1224
(Idaho, 1986); In re Christensen, 655 P2d 646 (Utah,
1982). These courts have reasoned that, because the
"contemplation of marriage" requirement figured
prominently in the common law, its omission from a subsequent
statute on the subject should be deemed intentional, and its
addition by way of a judicial decision would be inappropriate. Keeven,supra at 1230; Christensen, supra at 649. We
are persuaded that the reasoning of these latter courts is more
in accordance with our principles of statutory construction.

Contrary to petitioner’s contention, our decision is
consistent with In re McPeak Estate, 210 Mich App 410; 534
NW2d 140 (1995), a case in which this Court was called on to
interpret Michigan’s pretermitted heir statute, MCL 700.127; MSA
27.5127. In holding that the testator’s adopted daughter was not
a pretermitted heir because she had been provided for in the
testator’s will, this Court noted as a matter of fact that the
testator was contemplating her adoption at the time of the
execution of the will. McPeak, supra at 414.
However, the Court also specifically noted,

Our holding comports with the plain language of the
pretermitted heir statute . . . . The statute
makes no distinction between a devise made to a child as a
prospective adoptee and a devise made to a child as a stepchild
or in a different status. Rather, the statute simply requires a
failure by the testator to provide for his child. [Id. at
414-415 (quotation omitted).]

Likewise, the pretermitted spouse statute makes no distinction
between a devise made to a future spouse in contemplation of
marriage and a devise made to a future spouse as a friend or in a
different capacity. Rather, the statute simply requires a failure
by the testator to provide for his surviving spouse in any
capacity. If the Legislature sought to include surviving spouses
named in the will in some capacity other than spouse within the
purview of the pretermitted spouse statute, it could have done so
by including a "contemplation of marriage" requirement
in the plain language of the statute.[4]Finally,
we note that Michigan’s elective share provision, which does not
require omission from the testator’s will, is available to offer
some protection to surviving spouses like petitioner. See MCL
700.282; MSA 27.5282.

Because petitioner was named in the will, she could not
succeed in her claim to be a pretermitted spouse. Therefore,
because she was not entitled to a trial on the issue of her right
to take as a pretermitted spouse, she is not entitled to the
relief requested on appeal. Moreover, we need not address her
second argument regarding the probate court’s exclusion of expert
testimony during the trial.

Petitioner next argues that the probate court erred in
terminating petitioner’s non-chargeable family allowance after
only seven months. Although petitioner frames this issue in terms
of her right to a continuation of non-chargeable monthly family
allowance payments during the five months immediately following
the one-year anniversary of the testator’s death, her argument is
based on the fact that she did not receive any non-chargeable
monthly family allowance payments during the five months
immediately following the testator’s death. Accordingly, we will
construe this issue as one contesting the probate court’s
decision to deny her petition for non-chargeable family allowance
payments retroactive to the date of the testator’s death. Cast in
these terms, we agree that the probate court was in error.
Whether petitioner was entitled to a retroactive spousal
allowance is a question of statutory interpretation. Statutory
interpretation is a question of law that is reviewed de novo. Rose
Hill Center, Inc v Holly Twp, 224 Mich App 28, 32; 568 NW2d
332 (1997).

The issue whether a surviving spouse, after filing a petition
for family allowance payments, is entitled to payments
retroactive to the time of the decedent’s death has not been
squarely addressed by Michigan’s appellate courts. Once again,
our analysis is guided by the plain language employed by the
Legislature. Under the family allowance statute, MCL 700.287; MSA
27.5287, a surviving spouse is "entitled" to a
reasonable family allowance "during the progress of the
settlement of the estate." The allowance "paid for 1
year" has priority over all other claims. After one year, on
a showing of necessity, the payments may be continued as
advancements against the surviving spouse’s interest in the
estate. The statute provides that the family allowance
"shall" be granted upon petition to the court and
nothing in the statute precludes a retroactive grant of payments
for the period between the time of the testator’s death and the
time of the filing of the petition. Id. On the basis of
the unambiguous statutory language, we conclude that
Legislature’s intent in drafting the family allowance statute was
to provide for the support of surviving spouses (and the other
persons designated in the statute) during the period between the
decedent’s death and the distribution of estate.

Our conclusion is bolstered by the Michigan Supreme Court’s
interpretation of the predecessors to the current family
allowance statute: In construing a set of statutes substantially
similar to MCL 700.287; MSA 27.5287, the Supreme Court explained
that, as a matter of law, a surviving spouse is "absolutely
entitled" to family allowance payments for a period of one
year from the time of the decedent’s death. Bacon v Kent Co
Probate Judge, 100 Mich 183, 186-188; 58 NW 835 (1894); see
also Pulling v Wayne Co Probate Judge, 88 Mich 387,
389-390; 50 NW 319 (1891). Because petitioner was entitled to
receive one full year of non-chargeable family allowance payments
from the time of the testator’s death, including the five months
immediately following the testator’s death, the probate court was
in error when it failed to grant petitioner’s request for
non-chargeable family allowance payments retroactive to the time
of the testator’s death. The determination of the amount of a
family allowance is left to the sound discretion of the probate
court. In re Burton Estate, 145 Mich App 133, 137; 377
NW2d 364 (1985). On remand, the probate court is directed to
order respondent to pay petitioner from the estate a reasonable
family allowance attributable to the five months immediately
following the testator’s death.

Petitioner next argues that the probate court erred in denying
her request to withdraw her election of the statutory spouse’s
share and to take under the will instead. We disagree. Under the
spouse’s election statute, MCL 700.282; MSA 27.5282, the
surviving spouse of a decedent domiciled in Michigan who dies
testate may elect to either (1) abide by the terms of the will or
(2) take a portion of the share that would have passed to the
surviving spouse had the decedent died intestate. The surviving
spouse must make the election within sixty-days after the date
for presentment of claims, or within sixty-days after filing
proof of service of the inventory upon the surviving spouse,
whichever is later. Id.

As a general rule, we think that a surviving spouse should not
be permitted to withdraw an election after the statutory time
period for making such an election has passed. To allow untimely
withdrawals simply as a matter of course would render the
statute’s sixty-day time limit for making elections essentially
meaningless. See In re Quintero Estate, 224 Mich App 682,
699; 569 NW2d 889 (1997) ("We will avoid statutory
constructions that render a statute, or any part of it,
surplusage or nugatory."). In support of her argument that
she should have been allowed to withdraw her election and take
under the will, petitioner argued to the probate court, and now
argues to this Court, that her election was uninformed because
the initial inventory of the estate provided by respondent
allegedly contained factual errors. In her briefs on appeal,
however, petitioner fails to adequately apprise this Court of the
specific factual "errors" or even the extent of those
errors. Petitioner also failed to apprise the probate court of
the specific factual errors when she requested to withdraw her
election. Accordingly, we are unable to consider their effect on
petitioner’s request to withdraw her election.

Finally, petitioner asserts in her statement of questions
involved that the trial court failed to make a finding as to the
amount of her elective share. Although the probate court made no
explicit findings as to the amount of property derived by
petitioner from the testator by means other than testate or
intestate succession upon the testator’s death, it did find that
petitioner was not entitled to any amount pursuant to her
election.[5]
Because petitioner provides no real argument or authority for the
proposition that the probate court was required to make specific
and explicit findings as to each aspect of the elective share
calculation, we deem this issue to have been waived for purposes
of this appeal. See Magee v Magee, 218 Mich App 158, 161;
553 NW2d 363 (1996).

Affirmed in part, reversed in part, and remanded. No taxable
costs pursuant to MCR 7.219, neither party having prevailed in
full. We do not retain jurisdiction.

(1) In addition to the right to homestead allowance and exempt
property, the surviving spouse of a decedent who was domiciled in
this state and minor children of a decedent whom the decedent is
legally obliged to support are entitled to a reasonable family
allowance out of the estate for their maintenance during the
progress of the settlement of the estate according to their
circumstances but never for a longer period than until their
shares to the estate shall be assigned to them nor for more than
1 year after the death of the decedent in an insolvent estate. On
showing of necessity, the allowances may be continued from time
to time in a solvent estate beyond the year, but the allowances
beyond the year shall be charged as advancements from the estate
against the interest of the spouse or against the interests of
the minor children, as the case may be. The allowance shall be
granted upon petition to the court and after notice as provided
by supreme court rule. The allowance is payable to the surviving
spouse for the use of the surviving spouse and minor children;
otherwise to the minor children, their fiduciaries, or other
persons having their care and custody. If a minor child is not
living with the surviving spouse, the allowance may be made to
the minor child or to the fiduciary or other person having care
and custody of the minor child, as his or her needs may appear.
The family allowance paid for the 1 year is exempt from and has
priority over all claims and is not charged against any benefit
or share passing to the surviving spouse or minor children by the
will of the decedent, by intestate succession, or otherwise.

(2) Notice of hearing on a petition for allowance for the
support of a spouse or minor children shall be personally served
upon the personal representative of the estate of the decedent at
least 5 days before the hearing on the petition, unless the
personal representative appears in court or in writing waives the
notice. If the spouse is the personal representative, notice of
hearing on the petition shall be given to interested parties as
provided by supreme court rule. [MCL 700.287; MSA 27.5287.]

(1) If a decedent who was domiciled in this state dies testate
leaving a surviving spouse, the fiduciary appointed to represent
the estate, before the date for presentment of claims, shall
serve notice on the surviving spouse of the spouse’s right to an
election as provided by this section and to file with the court
an election in writing that the spouse elects 1 of the following:

(a) That the spouse will abide by the terms of the will:

(b) That the spouse will take 1/2 of the sum or share that
would have passed to the spouse had the testator died intestate,
reduced by 1/2 of the value of all property derived by the spouse
from the decedent by any means other than testate or intestate
succession upon the decedent’s death.

(c) If a widow, that the spouse will take her dower right
under sections 1 to 29 of chapter 66 of the revised statutes of
1846, as amended.

(2) The surviving spouse shall be entitled to only 1 election
choice under subsection (1) unless the contrary plainly appears
by the will to be intended by the testator. The right of election
of the surviving spouse may be exercised only during the lifetime
of the surviving spouse. The election shall be made within 60
days after the date for presentment of claims, or within 60 days
after filing proof of service of the inventory upon the surviving
spouse, whichever is later.

(3) Notice of right of election shall be served upon the
decedent’s spouse, if any, and proof of that notice shall be
filed with the court. An election as provided by this section may
be filed in lieu of service of notice and filing of proof.

(4) In the case of a legally incapacitated person, the right
of election may be exercised only by order of the court in which
a proceeding as to that person’s property is pending, after
finding that exercise is necessary to provide adequate support
for the legally incapacitated person during that person’s life
expectancy.

(5) The surviving spouse of a decedent who was not domiciled
in this state shall be entitled only to election against the will
as may be provided by the law of the place in which the decedent
was domiciled at the time of death.

(6) As used in subsection (1), "property derived by the
spouse from the decedent," includes all of the following
transfers:

(a) A transfer made within 2 years of decedent’s death to the
extent that the transfer is subject to federal gift or estate
taxes.

(b) A transfer made before the date of death subject to a
power retained by the decedent which would make the property, or
a portion of the property, subject to federal estate tax.

(c) A transfer effectuated by the death of the decedent
through joint ownership, tenancy by the entireties, insurance
beneficiary, or similar means. [MCL 700.282; MSA 27.5282
(footnote omitted).]

[3]Petitioner’s decision to take
her elective share of the estate did not operate as a waiver of
her right to pursue the larger share potentially available to her
as a pretermitted spouse. See In Re Cole Estate, 120 Mich
App 539, 543; 328 NW2d 76 (1982).

[4]For example, the revised
version of the Uniform Probate Code contains an explicit
"contemplation of marriage" requirement in it’s
"pretermitted spouse" section, which provides:

(a) If a testator’s surviving spouse married the testator
after the testator executed his [or her] will, the surviving
spouse is entitled to receive, as an intestate share, no less
than the value of the share of the estate he [or she] would have
received if the testator had died intestate as to that portion of
the testator’s estate, if any, that neither is devised to a child
of the testator who was born before the testator married the
surviving spouse and who is not a child of the surviving spouse
nor is devised to a descendant of such a child or passes under
Sections 2-603 or 2-604 to such a child or to a descendant of
such a child, unless:

(1) it appears from the will or other evidence that the will
was made in contemplation of the testator’s marriage to the
surviving spouse;

(2) the will expresses the intention that it is to be
effective notwithstanding any subsequent marriage; or

(3) the testator provided for the spouse by transfer outside
the will and the intent that the transfer be in lieu of a
testamentary provision is shown by the testator’s statements or
is reasonably inferred from the amount of the transfer or other
evidence.

(b) In satisfying the share provided by this section, devises
made by the will to the testator’s surviving spouse, if any, are
applied first, and other devises, other than a devise to a child
of the testator who was born before the testator married the
surviving spouse and who is not a child of the surviving spouse
or a devise or substitute gift under Sections 2-603 or 2-604 to a
descendant of such a child, abate as provided in Section 3-902.
[Uniform Probate Code, § 2-301 (emphasis added).]

[5]
In his motion for entry of judgment and reimbursement of
chargeable spousal allowance, respondent asserted that, viewing
the evidence from the trial in a light most favorable to
petitioner, one half of the value of the property derived by
petitioner from the testator by means other then testate or
intestate succession upon the testator’s death exceeded one
quarter of the value of the estate. Based on these figures, which
were adduced at trial, respondent asserted that the value of
petitioner’s elective share was zero. By granting respondent’s
motion, the trial court implicitly accepted these figures.